The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
Pending before the Court is the GOVERNMENT'S APPEAL FROM ORDER OF RELEASE (Document No. 22). Defendant has filed a response in opposition (Document No. 27) and the appeal is ripe for disposition. Given the liberty interest at issue, the Court has expedited its consideration of this matter.
Factual and Procedural Background
On February 4, 2011, Brownlee was indicted by a federal grand jury on one count of Distribution of Material Depicting the Sexual Exploitation of a Minor, in violation of 18 U.S.C. § 2252(a)(2), which carries a statutory mandatory minimum sentence of five years imprisonment. The government has represented that it intends to bring additional charges against Brownlee "in short order."
Brownlee was arrested on May 12, 2011 and had an initial appearance before Magistrate Judge Ervin S. Swearingen, after which he was temporarily detained pursuant to the request of the government. On May 17, 2011, the Magistrate Judge conducted a detention hearing. This Court has reviewed a transcript of that proceeding. At the detention hearing, Brownlee did not testify, nor did his attorney present any witnesses or evidence on his behalf. The government presented testimony from FBI Special Agent Tanya Evanina and Pretrial Services officer Eric Bossart.
Special Agent Evanina testified about the six-month undercover investigation of Brownlee, including his numerous conversations with confidential informants. The government played recordings of some of these conversations during the hearing. Brownlee was first reported to government agents by a person he contacted through a bondage and discipline/sadism-masochism website. During a telephone conversation with that person, Brownlee overheard small children playing in the background and asked whether the informant was willing to provide the children to him for a sexual encounter. The informant declined and thereafter contacted the police. She also agreed to cooperate with law enforcement in an investigation. Over the ensuing months, Brownlee expressed to informants, inter alia, his desire to engage in sexual activity with very young children; that he had engaged in numerous sexual encounters with his own daughter (now an adult) beginning when she was three years old; that he was actively searching for mothers and/or nannies who would allow him to have sexual "access" to young children in their care; that he was arranging for his daughter to have a sexual encounter with two young boys in Washington, D.C.; and that he had previously arranged with a bus driver from New Jersey to drop off the driver's daughter in Pittsburgh for sexual encounters. In addition, Brownlee sent numerous photographs to the informant which depicted prepubescent children engaging in sexual activity.
Special Agent Evanina also testified regarding Brownlee's extensive efforts to arrange a sexual encounter with a (purported) seven-year-old daughter of another confidential informant. On April 30, 2011, Brownlee met with the purported mother (and another confidential source) at an Eat 'n Park restaurant to plan an illicit sexual liaison at a local hotel. At the meeting, Brownlee gave both confidential sources $100. Brownlee specified that the seven-year-old girl was to wear a Catholic schoolgirl outfit, discussed the sex acts he would perform, and agreed to reserve and pay for the hotel room. Brownlee also agreed to bring the girl a Barbie doll as a gift and to pay an additional $200 to the mother.
On March 11, 2011, Brownlee reserved a room for the next day at the Knight's Inn in Bridgeville, Pennsylvania. Brownlee then called the confidential source with directions to the hotel. Shortly after noon on May 12, 2011, Brownlee drove to the Knight's Inn, went to the front desk, and paid cash for the room. He then returned to his car, drove to the back of the hotel and parked in front of the rented room, where he was taken into custody. In Brownlee's car, the agents recovered a Barbie doll wrapped in pink paper, a brand new camera, "penis straws," lubricant, maxi pads, Viagra pills and $200 in cash.
The evidence presented at the detention hearing established that Brownlee is married, but separated, and lives alone. Brownlee's daughter lives nearby him. Brownlee pays the bills at premises located at 55 Port Perry Road, North Versailles, Pennsylvania, but he typically slept there only one or two nights per week. Brownlee worked at three different jobs, including a real estate company and a mental health/mental retardation facility and he usually slept at one of those work locations. Brownlee represented that he would install a telephone land line at the Port Perry Road residence, to enable electronic monitoring.
Apparently, Pretrial Services prepared a report which suggested that Brownlee need not be detained pending trial. This report has not been made part of the record. Pretrial Services officer Bossert testified that the report had been prepared based solely on the initial indictment for distribution of child pornography based on an interview with Brownlee. Pretrial Services was not aware of Brownlee's efforts to engage in a sexual encounter with a minor child at the Knight'sInn.
At the conclusion of the hearing, the Magistrate Judge placed Brownlee on "home incarceration," with the instruction that he was not to leave his residence unless granted permission by Pretrial Services. Upon the government's request, the Magistrate Judge stayed his decision pending this appeal.
The government strenuously objects to Brownlee's release. The government asserts that the charges in the indictment generate a "presumption" in favor of pretrial detention and argues that the facts would justify Brownlee's detention even in the absence of such a presumption.
The legal standards governing review of a magistrate judge's decision regarding pretrial detention were ...